FRA Conference 2011Varsovie

Matthieu GRÉMAUDInspecteur du Travail

Strasbourg

The Rights of Immigrant Workers in France: Experience of a French Labor

Inspector

French Labor Inspection Legal Environment

• Convention ILO n°81 and 129• European Directives (Labor/Services/Social

Security)• Administrative Law • Labor law :

– Criminal– Civil

!These different sources sometimes conflictwhen conducting operations in the field : for instance, the ILO and Administrative Law.

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French Inspection du Travail vs. Illegal Employment

A comprehensive-and-territory-focused approach of labor relationships, which has the following consequences:

• Illegal employment makes up only 10-20% of daily workload of labors inspectors; even less when dealing with foreign-based companies or their employees.

• The local focus is:• A Plus : thorough understanding of the

local players (corporation, public instances, etc.)

• A Minus : limited view of the local actions of foreign-based companies.

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The Labor Inspector’s Different Roles

• Controlling Role: To assess situations, to correct them immediately (when possible), to report, to communicate, and to sanction if need be.

• Advising Role: To communicate with local partners about Labor Law and its proper implementation (both civil and criminal aspects).

• Leading Role:– Control Strategy– To qualify labor issues into legal terms

• Iniatitive Role: To develop and implement new systems to help local parties and victims.

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Two Examples

1. Control of a complex agricultural entity. 2. Local response provided to Labor Law

victims regarding their Rights of Information.

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1. Example of a Complex Entity

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At Stake:

237 Romanian posted employees, €200,000 of lost income for the Romanian

employees in the form of : unpaid vacation days, no respect of mininum wage, unpaid agriculture-specific eligible benefits

€551,000 of lost income for local, regional, and national payers entities (e.g., Sécurité Sociale (French national healthcare insurance), Pole Emploi (Unemployment Insurance Fund))

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Controlling Technique: Evidence Gathering

11 controlling actions by the Inspection du Travail between November 2006 and November 2007.

Implementation of a system to track employees using Posting of worker’s declaration records and to quantify the activity level of the companies in France.

Communication and requests of additional controls in other French regions where the same companies were employing workers illegally.

Request of actions of the Romanian Liaison Office Search warrant and crossed-auditions requested by the

French local Criminal Court conducted by the French national police, the Inspection du Travail, the Sécurité Sociale and the French tax authority.

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Infractions - Actions

We recorded the following infractions: Illegal Temporary Employment Agencies Illegal sub-contracting of Labor (unpaid or

under-paid benefits) « Hidden » work through non-declared

employeesCompany fraud (non-declared activities)Hiring of foreign citizens without proper work

permit We brought the case to the Criminal Court to

judge the two leaders in charge of this scheme.

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Verdict of the Court

Both leaders were judged in Criminal Court (Nov. 2009) and convicted to :

2 &3 years of prison with parole respectively

€189 600 penalty each (237 x € 800) Ban from managing company for 2 & 3

years respectively.Publication of verdict in the Press

Local, regional and national payers entities recovered their dues from the companies ultimately using the labor.

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…. But …..The victims did not get ANYTHING !!!

2 . Rights of Information of VictimsFacts: Very few cases involving victims of Illegal

Employment are brought to the labor Civil Court (Conseil des Prud'hommes) although civil compensations for the employees are big ( 3 months of salary if the employee is not declared; 3 months if the employee has no proper work permit, etc.)

Foreign employees don’t know their rights and don’t know how to get compensated for damages.

Lawyers and Unions don’t get very involved in this aspect of employees’ compensation.

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How to focus on the fact that the people are foremost « employees » before being« migrants »?

Information to the Victims

Creation of a Form (translated in 12 languages) communicated to migrant employees describing:

His/her Rights How to request an Attestation of Enrollment at

the Sécurité Sociale Who to contact to bring a case to the local Civil

Court, even when the employee is requested to leave the country.

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The local Criminal Court requested that all parties involved with Labor Law include this Form describing the Rights of the Victims in the Procédure Pénale.

Quick-Fix and Longer-Term Suggestions

Quick-fix: Communicate the Form at the national level Ensure that this Form is communicated by parties controlling

Illegal Employment ( e.g. Police, Customs, etc.) Include in the A1 Formulary (ex : E101) relevant texts banning

double- posting of employees (CASSTM, Decision n°A-2 of 12/06/2009)

All this requires: Increased coordination among all players (CODAF, efficient

Liaison Offices) Tracking system for foreign-based companies involved locally

(FRAMIDE) Additional adhoc human resources (e.g., IL special branches,

coordinated actions of different sections, translation professionals,OCLTI, etc.)

Appropriate training of all controlling parties.

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….but really TIME because the situations are becoming more comp

FRA Conference 2011Varsovie

Matthieu GRÉMAUDInspecteur du Travail

Strasbourg

Merci! - Dziękuję!